New ILO Treaty on Forced Labor Victims

by Duncan Hollis

With all the talk of the End of Treaties and Treaty Survival, it’s worth noting that the wheels of multilateral treaty-making have not come to a complete stop. Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention. On paper, the 1930 Convention was a success — it currently has 177 parties. But it’s also considered outdated within the human rights community, which has emphasized the continuing and significant costs of forced labor in humanitarian and economic terms, necessitating new legal tools to limit or mitigate the effects of this horrible practice.

Some of the 2014 Protocol’s provisions are standard treaty fare on modern global problems — i.e., requiring “national” plans of action and domestic legislation on forced labor issues. Other provisions reflect the need to update the 84 year old Convention itself (i.e., deleting provisions on forced labor in overseas “colonies”). The heart of the treaty appears to be Article 4:

Article 4
1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.

2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

I’d be interested in reactions from those who follow the ILO and forced labor subjects more closely. Is this Protocol significant in the ongoing efforts to deal with human trafficking and forced labor? How important is the expansion of the right to relief to include migrants who might otherwise be labeled “illegal” via their immigration status? And is the “entitlement not to prosecute” that significant a requirement? It presumably still gives State authorities the ability to prosecute forced labor victims engaged in ‘unlawful’ behavior like sex work or drug offenses even if they were coerced into doing so. Thus, it seems more like an aspirational goal than a provision that will mandate changes in State behavior. Comments most welcome.

One Response

The adoption by the International Labour Conference (ILC) of the Protocol to the Forced Labour Convention of 1930 (No. 29) confirms that multilateral law-making can still be effective when it comes to protecting human dignity. However, it is important to take into consideration that within the ILO, conventions and recommendations are elaborated and adopted on a tripartite basis among states, workers and employers organisations.
Even though Convention No. 29’s original purpose was to supress the compulsory labour of native workers, a practice that still existed in certain non-self-governing territories during the first half of the twentieth century, it was drafted in such a way as to apply to other forms of forced labour. Recently, for example, on the basis of Convention No. 29, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) requested that the Government of Malaysia reinforces its efforts to suppress human trafficking. In a similar vein, the CEACR urged the Government of Saudi Arabia to take actions to protect migrant domestic workers from abusive practices.
The point I want to put forward is that the adopted Protocol strengthens the role of Convention No. 29 as a legal tool that can still be used to combat labour trafficking nowadays. The Protocol confirms the definition of forced labour set out in the Convention, but extends its scope to include situations related to labour trafficking. Furthermore, the Protocol imposes new obligations on states in connection with Convention No. 29. These include the obligation: to take action to prevent human trafficking; to ensure that victims of forced labour, regardless of their legal status, have access to appropriate remedies, including compensation; and to refrain from prosecuting such victims for their ‘participation’ in unlawful activities connected to forced labour. It is very important to note that, during the discussion of the draft text in the ILC, there were no objections to extend the protection to illegal residents (See Provisional Protocol No. 9 (Rev.) ILC 103th Session).
As is the case in many ILO instruments, states can freely determine the policies and measures to implement the Protocol. This was reaffirmed during the discussion of the text of the Protocol. The Government of Greece, for instance, speaking on behalf of the EU, pointed out that measures to be adopted in compliance with article 4 shall be in accordance with the basic principles of their legal systems. It is, thus, for the ILO supervisory bodies, when they come to analyse the reports submitted by countries on the implementation of Convention No. 29 and its Protocol, to make sure that the measures in this respect are effective in terms of prevention, prosecution of perpetrators and victim protection.
However, it is not only states but also workers and employers organisations that share the responsibility for supervising the implementation of the Protocol. Article 6 stipulates that the measures taken to apply the provisions of the Protocol shall be determined by national laws or regulation or by competent authority, after consultation with the organizations of employers and workers concerned. Furthermore, as indicated in the 2014 International Labour Office’s Report on the law and practice concerning elimination of forced labour, a greater involvement of labour inspectorates is critical to identify violations of labour rights at work places that may involve forced labour practices (See Para. 9 of the Report IV (1), Strengthening action to end forced labour).
The extent to which the Protocol can prosper in its attempt to supress forced labour affecting illegally employed migrant workers may depend largely on its ratification, particularly by countries attracting the most immigrants. Convention No. 29 is one of the ILO’s most widely ratified instruments. This stands in sharp contrast to the low level of support (in terms of ratification) given to the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). Convention No. 143, which calls upon States to adopt measures to suppress clandestine movements of migrants for employment as well as illegal employment of migrants, has been ratified only by 23 states. Popular immigration destinations such as the USA, France, Switzerland, Germany, Russia and Qatar do not appear in the list of ratifying countries. This might suggest that the Protocol would not be easily ratified by countries in which immigration is a sensitive issue and dealt with as a matter of domestic policy only. Yet, there are still some grounds for optimism. Workers and employers organisations can engage actively in promoting ratification of the Protocol in tripartite consultative bodies created for the purpose of monitoring the implementation of international labour standards (See Tripartite Consultation (International Labour Standards), Convention (No. 144)). At the international level, the ILO can also work together with other human rights bodies in raising awareness among states of the importance of suppressing labour trafficking and in condemning countries which do not provide for domestic remedies for the victims of forced labour.

6.22.2014
at 4:53 pm EST Maria Victoria Cabrera

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